More than 4,500 children of the Wayuu community have died of malnutrition in the past 8 years. The situation is getting worst since according to the latest report of the Institute of National Health of Colombia more than 100 children have already died in 2016. Without any doubt, this case represents a systemic and structural violation of human rights affecting a social group that is considered with characteristics of high vulnerability by the Colombian Court.
The Colombian Constitution (1991) recognises the rights of Children in art 44 “The following are basic rights of children: life, physical integrity, health and social security, a balanced diet, their name and citizenship, to have a family and not be separated from it, care and love, instruction and culture, recreation, and the free expression of their opinions”. However, despite this serious commitment many children in this country have been completely abandoned leaving them without any type of support. Critics might suggest that what the institutions of the Colombian State are currently doing to solve this crisis is not enough and many poor children are dying because of the lack of robust policies.
The effect of Double reactions coming from civil society and the Judiciary at the local and international level have started to put pressure on the government asking them to deliver urgently a substantial change in the lives of these children. For instance, the Interamerican Commission of Human Rights requested that precautionary measures be adopted for these children and considered that there was a serious and urgent situation since the personal integrity of these children and young people were at risk. In a similiar vein just recently a local Tribunal has also ordered the Government to solve the situation in 2 days otherwise it will be found guilty of comptent.
The neoconstitutionalism paradigm has brought not only a change of judicial interpretation but also a change of the tools that Courts have at their disposal to deal with this type of crisis. “Unconstitutional State of Affairs” might be defined as a legal ruling that allows Constitutional Courts to acknowledge the failure of Institutions in enforcing public policies that will enable the State to fulfil its obligations of Result and Conduct in systemic, collective and structural cases (see Maastricht Guidelines, 1997, p.7). This type of tools have been largely used by Courts such as Colombia, Brasil and in the United States is integrated in the Structural injuctions.
It was precisely in decision T-025 (Internally displaced population) when the Colombian Court did specify in a clear and concise way the definition of an Unconstitutional State of Affairs. For the Colombian Court such ruling might be declared if the following elements are present:
- A massive and generalised violation of several constitutional rights that affect a significant number of people.
- A continuous omission of the authorities in the fulfilment of their obligations to protect their social rights
- The adoption of unconstitutional practices such as the incorportation of the Tutela action as part of the procedure to guarantee the right.
- The lack of adoption of legislative, administrative and budgetary measures to avoid the violation of rights.
- The existence of a social problem whose solution demand commitments from several public institutions, requires the adoption of complex and coordinated set of actions and demands levels of resources and an important additional budgetary effort.
In this way the declaration of the Unconstitutional State of Affairs is a tool increasingly being used by Courts to solve systemic violations due to actions or omissions of State Institutions.
However, why the Constitutional Court of Colombia have not declared an Unconstitutional State of Affairs in the case of the malnourished children who are increasingly dying of hunger? Is this due to a lack of willingness? or institutional capacity?
What is true at this time is that the Colombian model of judicial review is currently being affected by a deep crisis of democratic legitimacy and separation of powers due to a “balance of power” reform that is causing the legislative and the executive to collide with the Judiciary over policy decisions. Tensions remain high on the issue of the levels of powers each institution is legally entitled to have. However, in the middle of this conflict, systemic and structural violations such as the catastrophic levels of malnutrition are taking place on the background and need an urgent solution. Perhaps, it is precisely this type of conflicts and the fears it spread what might not be allowing the Constitutional Court to widen its scope to deal with the systemic and structural crisis that are affecting the country.
The problems of the Judiciary in Colombia are very grave, serious and need a strong reform. Some other challenges still also remain and are continuously affecting the institutions of the State in the protection of Social Rights. For instance, there are still problems with the coordination of institutions at different levels, dispersion of responsibilities and lack of clear action.